Citizenship and Immigration Committee on Nov. 19th, 2014

[Costas Menegakis, Conservative, Richmond Hill, ON]

My question is this. We've heard over the past couple of days when we've met, particularly earlier today, that there are some concerns by some that we want to take away the provision of health services or reduce somewhat the provision of health and social assistance to refugees. Our government has always maintained that we want legitimate refugees to be able to access health care and social assistance.

[The Vice-Chair, Liberal, John McCallum]

Can you answer that quickly? The time is up.

[Aaron Wudrick]

What I would say is that we take no position on whether or not there should be a requirement but we do think it's appropriate that the provinces make those decisions.

[The Vice-Chair, Liberal, John McCallum]

Thank you very much.

Now it's the NDP for seven minutes.

[Andrew Cash, NDP, Davenport, ON]

Thank you, Chair.

I just want to get right into it but before we do I think it's important to say that this process is flawed. We had asked for this bill to be stripped out of the BIA so that we could fully examine it here in this committee and so that we could provide recommendations and provide amendments that would actually be meaningful. As it stands right now it's only the finance committee that can actually amend this bill. It's important to put on the record that the NDP is firmly against this process.

Having said that, it's great to see folks here including some familiar faces.

Mr. Showler, I want to ask you if it's permissible to deny refugees social assistance under international law and what do other host countries do?

[Peter Showler]

Under the convention itself there is an obligation for host countries to provide public assistance or public service at an amount equal to what they provide for their own nationals. What that means is that underdeveloped countries that really do not have a lot of money and don't provide social assistance for their own nationals don't do it at the same time for refugees. Ordinarily in those situations they end up in refugee camps and they're assisted and supported by the various international agencies.

All of the developed countries provide social assistance. My colleague, Mr. Bissett, here pointed out when I referred to Germany earlier that Germany doesn't provide wonderful social assistance. That is true. A German court last year ordered them to increase the amount of social assistance. But they do provide social assistance.

There is no developed country that is doing what this bill allows the possibility of happening. It's quite clear it happens with the provinces but you have the responsibility. With due respect to Mr. Wudrick, if you look at the Constitution under Section 91(25) the primary responsibility for refugees lies with this federal government. It's like taking a loaded gun and saying I'm not using it, we're just putting it out on the table, it's the provinces that are going to use it. But in actuality it's the responsibility of this government and there is no developed country that does not provide any social assistance. You're creating the possibility for that to happen.

[Andrew Cash, NDP, Davenport, ON]

The bill makes no reference to refugee policy. Is there a policy justification for denying social assistance to refugees or refugee claimants?

[Peter Showler]

Well, as you said, there are no policy justifications for any of this. We have rumours. We have notions.

What we do know, primarily from the government's policies around health cuts for refugees—and there has been reference to the Federal Court decision that struck down that provision as unconstitutional—is that this government has traditionally said that fraudulent refugees come because they come for the welfare, the health care, and God knows what.

But I can tell you that at the hearing for the Canadian Doctors for Refugee Care v. the government, the government was challenged to provide the evidence. And it had no evidence. That's why Justice Mactavish said that there is no evidence that cuts to refugee health care will deter refugees.

I do want to remind you that I don't just speak as a lawyer and advocate. I was chair of the board and I was a board member. I look at it from all of the various angles. What I can tell you from my 30 years' experience in the field is that refugees do not come when there's no possibility of being accepted.

Australia at one time deterred them. Australia at one time cut back on refugee health care.

You heard Loly Rico refer to the United Kingdom. It cut back severely on refugee assistance. That was only for refugees who did not claim right away.

None of those factors deterred refugees. Refugees are deterred when they think they will not be fairly assessed.

[Andrew Cash, NDP, Davenport, ON]

On the subject of deterrence, we heard from ministry officials the other day who said that there had been no study done by the ministry on whether these kinds of changes would act as a deterrent. We heard from the finance department official who said there had been no studies at Finance on whether this measure would save money.

However, at that committee meeting we heard from the government side that the reasons for making this change were to provide a disincentive and to save money.

Can you speak to that disconnect?

[Peter Showler]

Well, it's a disconnect. There is no evidence. There's no evidence in refugee law and international refugee law that it will deter claimants. That's not why they fail to come.

You really must remember that when most refugees come to Canada, first of all, we all know it's very hard to get here. There are very high visa barriers. If they need fraudulent documents then often they need them because it's the only way they can get here.

There is often a tremendous investment. Often they sell their houses. They're in extended families who pull together all of their savings in order to get here. It just makes no sense that they're going to do that and give up everything in their previous country to get welfare. It just does not compute; it does not make sense.

I can tell you from my experience in the field that it is not a relevant factor for why people seek asylum.

[Andrew Cash, NDP, Davenport, ON]

Can you posit a reason that the government would make this change?

[Peter Showler]

Well, here's what bothers me. First, to Mr. Wudrick's comments, I am not an expert on Canadian provincial versus federal fiscal policy, etc.

But if there is a sincere belief that the power should lie with the provincial government, then why are they not transferring the entire power? Why is it that it's only for some permanent residents, those who are victims of trafficking? That power is not being transferred to the provinces.

All of the indications are that they're really going after those who have an established record as being quite clear, targeted victims, which are refugee claimants and refugees.

But I'm in the area of speculation.

[The Vice-Chair, Liberal, John McCallum]

Thank you. That's it.

[Andrew Cash, NDP, Davenport, ON]

Mr. Chair, I'd like to move a motion to continue to sit until the bells ring.

[The Vice-Chair, Liberal, John McCallum]

All right.

[Costas Menegakis, Conservative, Richmond Hill, ON]

I have a problem. The time was up. It's up to you whether you want to allow the motion to stand.

[The Vice-Chair, Liberal, John McCallum]

Do you accept the motion?

[Costas Menegakis, Conservative, Richmond Hill, ON]

No.

[The Vice-Chair, Liberal, John McCallum]

Okay, then no.

There are five minutes remaining for the Liberals, which is me. My questions flow quite nicely from what was just stated.

My first question is for Mr. Wudrick. I completely disagree with the notion that this is a jurisdictional issue, let alone a housekeeping issue, because until recently the government's case against refugee health care and also social welfare was phrased in terms of “bogus refugees” and “gold-plated health care”. Then for whatever reason they softened the approach and they made it a pure issue of provincial jurisdiction; the provinces should have control. This was a recent change.

But—and this is my central point—I asked the officials and only one province was consulted, Ontario, and that province said it didn't want this law. The nine other provinces were not consulted.

I can understand giving jurisdiction to provinces if provinces are clamouring for it, but it's the opposite; nine provinces said nothing and one big province said they didn't want it. Under those circumstances why would you think it a good move, given all the other things parliamentarians could do to use up time, to give jurisdiction to provinces that don't want it?

[Aaron Wudrick]

I don't think it's an issue of whether they asked for it or not. If the decision-making power were left in their hands they would bear responsibility for that policy. When people are judging whether or not it's a good thing, when citizens are asked whether or not we want to have a minimum residency requirement for refugee payments or not, they know which level of government is making that decision.

[The Vice-Chair, Liberal, John McCallum]

My point is that when zero provinces have requested it, one province has actively said they don't want it, and then for the first time in 100 years the federal government thinks this is a high priority for provinces to have a power that they do not want, it's not a real motive. The real motive, I would say, is to attack refugees on both health care and welfare, and it's pretty obvious.

I'd like to ask Mr. Showler a follow-up question. I think one other witness, Ms. Go, talked about the legal side. You are a lawyer, so as a follow-up to the earlier question you had on legal matters, the courts clearly knocked down the health care initiative, saying it was cruel and unusual, and the federal government has to retract on that.

Do you think that there can be a similar court finding that this, for some reason, is unconstitutional, or can't be done, or is illegal, and that the federal government will have to retract? It may not because it's not doing anything except changing jurisdiction. If there were such a case, how would it come? Would it have to be through an appeal by someone to a court? How could this unfold from a legal point of view?

[Peter Showler]

It is a complicated legal question. If one province did deny welfare to refugee claimants and the kind of scenario I described ensued—where someone who's here has no resources, they're destitute, they're trying to prove the refugee claim—clearly that application in court would have the same logic as the health cuts case did. You'd be looking at section 7 in terms of security of the person because you could certainly establish that was affected; section 12, where you're talking about cruel and unusual treatment; and quite possibly section 15, discrimination. Those could apply.

What becomes trickier is you have a shadow target right now. I certainly do not agree with Mr. Bissett that this is housekeeping. It is not housekeeping. Apart from that, whether that could be attacked legally under the charter, that is a very sophisticated legal question, but I can assure you that the Canadian Association of Refugee Lawyers would certainly be looking at it.

[The Vice-Chair, Liberal, John McCallum]

Might it be the case that the lawyers would have to wait until the day when a province does it?

[Peter Showler]

That's right.

[The Vice-Chair, Liberal, John McCallum]

Thank goodness 7 out of the 10 provincial governments are now Liberal or NDP, with over 80% of Canadians, and I think it's highly unlikely any of them will. Should that sad day ever arise maybe that would be the time to mount a legal challenge. Is that correct?